¹ CIL VI, 930 = ILS 244. Theories advanced down to 1956 are reviewed by G. Barbieri, Diz. Ep. s.v. ‘lex“, 750 f., endorsing H. M. Last, CAH XI (1936), 404 f., and later discussions by Grenzheuser, B., Kaiser und Senat in der Zeit von Nero bis Nerva (Diss. Münster, 1964), 227 f.Google Scholar, cf 70 f.; see also F. de Martino, St.d. Cost. rom. IV² (1974), ch. xx (particularly for Part II). The studies most accessible to the English student, those of Last and Hammond, M., The Antonine Monarchy (1950)Google Scholar (see index under lex), are in my view in part erroneous, though they avoid the absurdities of M. A. Levi, Riv. Fil. LXVI (1938), 1 f. and Athen. XVI (1938), 85 f., and his followers. There is much good sense in B. Parsi, Désignation et investiture de l'Empereur rom. (1963)— the relevant criticisms of J. Bleicken, ZSS LXXXI (1964), 395 f. seem to be mistaken—and in Grenzheuser. Obiter dicta are countless. Homo, L. briefly suggested in Les instit. polit. rom. (1970), 260 f.Google Scholar, that a lex in A.D. 37 was the prototype, as I argue here. The conclusions and most of the arguments propounded below have been anticipated by individual scholars, but no full discussion known to me seems entirely satisfying. I have not burdened the notes by arraying eminent names who have taken this side or that, and have probably failed to express all my obligations to earlier work, of some of which I am doubtless unconscious; in general testimony and argument are to speak for themselves. Oswyn Murray helped me by criticizing an earlier draft. Mommsen, StR, is cited from the latest edition, reprinted in 1952.

² Rienzo's paraphrase of the tabula, which shows, e.g. in his confusion of ‘pomerium’ and‘pomarium’, that he did not understand it, has suggested to some scholars (most recently M. Sordi, St. Volterra 11, 303 f.) that he had before him another tablet, comprising the earlier part of the law and listing other imperial prerogatives, conveniently listed by Karlowa, , Röm. Rechtsgesch. I (1885), 496 f.Google Scholar; but see de Martino, op. cit. (n. 1), 562 f.

³ EJ 94 a (vv. 14; 17; 46; 49); 94 b.

⁴ Siber, H., Das Führeramt des Augustus (1940), 13 f.Google Scholar; 61; 67, collected evidence for historians such as Dio ignoring the formal part played by comitia and sometimes by senate in ratifying decisions Augustus took in acquiring or conferring imperial powers, legislating and ‘appointing’ magistrates.

⁵ RG 6, 2; similarly the laudatio Agrippae (EJ 366 = Zeitsch. Pap. Epigr. v (1970), 217 f. and VI (1970), 227 f.) distinguishes the SC under which Agrippa received tr. pot. from the lex which defined his imperium. Suet., Aug. 37 says that Augustus co opted his colleagues in tr. pot. So Mommsen StR 1, 220; II, 1161 = DPR 1, 251; v, 476 must be right in holding that the emperor could co-opt a colleague in tr. pot., though Augustus sought the consent of the senate (cf. n. 12).

⁶ RG 1. Augustus' possession of imperium from 43 B.C. is not veiled from the reader but almost everywhere patently implicit.

⁷ Brunt, , JRS LI (1961), 237Google Scholar; Zeitschr. Pap. Epigr. XIII (1974), 165 f. Cicero refers to the consular imperium of proconsuls (Flacc. 85; Pis. 38; 55); the adjective ‘proconsulare’ is first attested in Livy. It would have been absurd for a consul to be granted the imperium he already possessed.

⁸ Dio LIII, 32, 5, often misconstrued as a grant of lifelong imperium.

⁹ Dio LIV, 10, 5, which may mean only that he was now authorized to bear in Rome and Italy the insignia of the imperium he could already exercise there; in any event after 19 it is inconceivable that he had the insignia without the power. For his command and levying of soldiers see Zeitschr. cited in n. 7. EJ 282 f. illustrate his right to give commands in Italy. For his exercise of civil and criminal jurisdiction in the first instance and not only on appeal see W. Kunkel, ZSS LXXXI (1964), 360 f., reviewing Bleicken, J., Senatsgericht u. Kaisergericht (1962)Google Scholar; Kunkel may well be correct in tracing this jurisdiction back to his right, granted in 30 and distinct from tribunician power, ἔκκλητος δικάζειν (Dio LI, 19), cf. Dio LII, 33, 1 (τὰ ἐΦέσιμα), i.e. to assume jurisdiction on the request of either party; however, could the right have been fully effective, if its holder ceased to have the executive power of consular imperium which in 30 Augustus had as consul? Suet., Tib. 17, suggests that Tiberius' imperium was already valid in Rome on Augustus' death, cf. Ann. 1, 7, 5. However, possession of consular imperium did not mean that the holder could perform functions proper to a magisterial office, e.g. conduct of elections, cf. Levick, B. M., Historia XVI (1967), 207 fGoogle Scholar. and Astin, A. E., Latomus XXVIII (1969), 863 fGoogle Scholar. on the so-called ‘nominatio’ of emperors; thus Claudius had to assume a specific consular function, in order to preside over games (Dio LX, 23, 4. cf. StR 11, 136 f. = DPR III, 157). So perhaps in A.D. 14 Tiberius could only convene the senate ‘tribuniciae potestatis praescriptione’ (Ann. 1, 7; Suet., Tib. 23).

¹⁰ EJ 278 B = Front., Aqu. 104, cf. Dio LIV, 8, 4 (cura viarum). In 211 the senate had authorized a proconsul to command in the city, having ‘par cum consulibus imperium’ (Livy XXVI, 9, 10). Cf. the authority granted to Pompey as proconsul in early 52; he actually received criminal charges (Ascon. 34 C). Tiberius at least was associated with Aug. in taking the census of A.D. 14 by a lex. (Suet., Tib. 21). Some sort of authorization to perform censorial duties may lie behind Suet., Aug. 27 and Dio LIV, 10, which cannot be accepted as they stand (cf. RG 6). EJ 311, in shows that Augustus was empowered by lex or S.C. to grant citizenship and immunity.

¹¹ Vell. 11, 121, 1; Suet., Tib. 21, 1, cf. Zeitschr. cited in n. 7.

¹² Mommsen on RG 6 noted that the last renewal in A.D. 13 was perhaps for life. As it was still valid after Augustus' death (n. 9), it had perhaps then been confirmed by the comitia, and the text of RG 6 not revised to take account of this (n. 5).

¹³ He never took the last two, but coins and inscriptions (ILS III p. 262) show that Suet., Tib. 26, 2 was wrong in stating that he used the title of Augustus only to foreign princes.

¹⁴ Dio LIX, 3, 1 quoted in n. 18, which is only true about Gaius if we assume that Dio'ὀνόματα includes prerogatives as well as mere titles, as προσηγορίαι probably does in LIII, 18, 4.

¹⁵ Contra Levick, B. M., Tiberius the Politician (1976), ch. vCrossRefGoogle Scholar, it seems to me incredible that a formal ‘relatio’ should have vaguely recognized Tiberius' succession to a ‘statio paterna’, a Stoic metaphor (Brunt, PBSR XLIII (1975), 21).

¹⁶ Oxf. Lat. Dict. s.v., I C, cf. n. 23 and the similar use of ‘imperator’ attested by Vitruv. III pr., 4. Contra Grenzheuser, op. cit. (n. 1), 242, this wide meaning could have developed early, few remembering the Republic (Ann. 1, 3, 7), cf. perhaps Vell, II, 126, 5; 131, 2.

¹⁷ See edition by Pasoli, A., Studi e Bicerche VII (1950)Google Scholar; the relevant extracts are conveniently printed by Smallwood, E. M., Documents illustrating the Principates of Gaius, Claudius and Nero (1967), ch. IIGoogle Scholar and Documents illustrating the Principates of Nerva, Trajan and Hadrian (1966), ch. II, and by McCrum, M. and Woodhead, A. G., Select Documents of the Principates of the Flavian Emperors (1961), ch. IIIGoogle Scholar.

¹⁸ Dio LIX, 3, 1: δημοκρατικώτατός τε γὰρ εἶναι τὰ πρῶτα δόξας, ὤστε μήτε τῷ δήμῳ ἢ γε βουλῇ γράψαι τι μήτε τῶν ὀνομάτων τῶν ἀρχικῶν προσθέσθαι τι, μοναρχικώτατος ἐγένετο, (2) ὥστε πάντα ὅσα ὁ Αὔγουστος ἐν τοσούτῳ τῆς ἀρχῆς χρόνῳ μόλις καὶ καθ᾿ ἕν ἑκαστον ψηφισθέντα οἱ ἐδέξατο, ὦν ἔνια ὁ Τιβέριος οὐδ᾿ ὅλως προσήκατο, ἐν μιᾷ ἡμέρᾳ λαβεῖν.

In fact Gaius no more than Tiberius assumed the praenomen imperatoris, and as Dio himself notes (ibid. 3, 2), it was a little later that he accepted the title of pater patriae, not attested on coins or inscriptions before 39. It seems then that it was not so much titles as prerogatives, possessed by Augustus but in some cases rejected by Tiberius, that Gaius accepted on 28 March. Contra Bleicken, op. cit. (n. 1), the significance of Suetonius' ‘ius arbitriumque omnium rerum’ is not exhausted by reference to the exclusion of Tiberius Gemellus from any share in power.

¹⁹ This title appears on occasional coin issues from 55/6 (RIC I, 146 f.), but is only commonly used after 64/5 (156 f.)

²⁰ A. W. Lintott, CQ xv (1965), 381 f.

²¹ It is needless to discuss Mommsen's aberration in supposing that either senate or army could legitimate the imperium of the Princeps. Meyer, Ed., Hist. Zeitschr. XCI, 417Google Scholar, thought that no emperor required comitial confirmation for his powers after Tiberius had transferred elections from people to senate. But even after 14 candidates ‘destined’ by the senate still had to be formally returned by the comitia (n. 48); nor is a lex conferring powers on a named individual the same as an election to a magistracy. Parsi, op. cit. (n. 1), 125 rightly views the lex curiata of the Republic, confirming the imperium of an already elected magistrate, as irrelevant.

²² e.g. Hammond, op. cit. (n. 1), 7.

²³ Thus Trajan's dies imperii was 28 January 98, that of Pius 10 July 137, that of Marcus 7 March 161: see Feriale Duranum, Yale Cl. St. VII (1940); in each case the date is that of ‘succession’, and each had possessed imperium under his predecessor (Parsi, 127 f.). Cf. n. 16.

²⁴ Dio-Xiph. LXIV, 8, 1 says that the senate voted Otho all that pertained to arche (imperium), Plut., , Galba 28Google Scholar that they took an oath to Otho and gave him the names of Caesar and Augustus; in the Arval Acta he is ‘imperator Otho Caesar Augustus’. (Galba too had been ‘imperator’, Caesar and Augustus, as coins show; Caesar had become an imperial name with Claudius, who had no family claim to it.)

²⁵ Contra Grenzheuser, op. cit.(n. 1), 240. Strictly, Otho acquired imperium as consul, but since 23 B. C. the consulate had come to be seen as purely ornamental for the emperor. Otho had to be chosen pontifex before he could become pontifex maximus; the electing body (17 of the 35 tribes) and the presiding officer (a pontifex) were not the same as at the other elections. Augustus' comitia pontificatus maximi (RG 10) were as late as 12 B.C., Tiberius' on 15 March 15 (EJ, p. 47).

²⁶ This tends to confirm Tac., Hist. I, 88. Maecius: RE XIV, 237.

²⁷ No doubt the senate voted him the names Caesar and Augustus which both Galba and Otho had had, but he declined the first till almost the end of his reign, and postponed acceptance of the second (Hist. 1, 62; 11, 62; 90; 111, 58); hence neither appears in the Arval Acta; ‘Augustus’ figures on some of his coin issues. Neither he nor Otho (unlike Galba) is known to have been ‘pater patriae’, a title normally offered but deferred. Unlike both Galba and Otho, Vitellius did not assume the praenomen imperatoris (ILS 243 need not reflect his wishes), which Nero had been the first emperor since Augustus to bear, and only from 66; again we must surely suppose that the senate had voted it to him. His novel title of ‘consul perpetuus’ (ILS 242 f.) illustrated, according to Suet., Vit. 11, his disregard for ius.

²⁸ Hammond, M., Mem. Amer. Acad. Rome xv (1938), 33Google Scholar.

²⁹ Dio-Xiph. LXVI, 1, 1 says that Vespasian was recognized as imperator by the senate, that Titus and Domitian were called Caesar and that Vespasian and Titus were designated consuls. The soldiers had already given Domitian the name of Caesar (Hist. III, 86); Dio here preserves a decision of the senate which Tacitus omits. Equally Tacitus does not expressly say that Vespasian received the nomina of clauses VII and VIII— ‘imperator Caesar Vespasianus Augustus’, which he had in fact already usurped (p. 106).

³⁰ On Helvidius see Brunt, PBSR XLIII (1975), esp. 28 f. The debate recorded in Hist. IV, 7 f. but perhaps not those of 9 f., took place at the same session as the decree de imperio (6, 3). It is perfectly clear from 4, 3 that Helvidius formally and no doubt, given his character, sincerely approved of Vespasian's recognition.

³¹ Tacitus delineates the impotence and servility of the senate with some acerbity, Hist. 1, 19; 35; 45; 47; 11, 71; 87; 101; III, 37; 55.

³² Hist. 1, 50; n, 31. On Otho see also 1, 71; 81. It was, none the less, of great value to Otho that in the provinces he was believed to have the authority of the senate on his side (1, 76; 84); as late as 238 the senate commanded great influence.

³³ Hist. 11, 91; 92, 2 f.; Dio LXV, 7. Cf. also n. 27. His coins celebrate LIBERTAS and CLEMENTIA (RIC 1, p. 224 f.); for clemency cf. Hist. I, 75; 11, 60; 62; III, 59; 75; Dio LXV, 6; Otho too had shown it (1, 45; 71; 88) and for the same reasons: not only did it make a good impression, but each could reckon that his rival had few, if any, devoted partisans whom it might be prudent to eliminate (cf. Hist. 1, 77; 11, 60). Suet., Vit. 13 f. presents a very hostile picture, perhaps from biassed Flavian sources, cf. also Hist. II, 63 f.; III, 38 f.

³⁴ Hence Otho's moderation also inspired no credence, Hist. 1, 71.

³⁵ Hist. II, 62; 94 f. Asiaticus: II, 57; 95. Cf. Suet., Vit. 10 f,; Dio LXV, 2–5; Hist. II, 71; 95; Suet., Vit. 11, cf. 4; Dio LXV, 7 (cf. Hist. 1, 78 for Otho). Tacitus allows him some merit only for ‘simplicitas’ and ‘liberalitas’, III, 86.

³⁶ Hist. 11, 56; 62; 68; 93 f. (Their demoralization is evidently exaggerated by Tacitus, following pro-Flavian writers, cf. Jos., BJ IV, 585 f.; so much is proved by the courage they displayed, though leaderless, in the second civil war.)

³⁷ Hist. 1, 50. Though contemptuous of time servers and traitors whom pro-Flavian writers had praised (11, 101; 111, 86, 2), critical of Vespasian's chief agents (esp. II, 84, 2; 95, 3) and not naturally biassed to the Flavian house after his experience of Domitian, Tacitus admitted that Vespasian's victory benefited the state and that some of his partisans had had the public welfare at heart, see 11, 5, 1; 7, 2; cf. Ann. III, 55. His alleged bad conduct as proconsul of Africa (II, 97, 2, contra Suet., Vesp. 4) hardly counted at Rome; it was perhaps remembered against him that he had been a protégé of Narcissus, but he had been inconspicuous between Agrippina's gaining power (ibid.) and his appointment in Judaea, and such reports as reached Rome thence may have at least confirmed his merits as general. Otho and Vitellius had both been favourites of Nero, and both had been disloyal to Galba.

³⁸ Hist. III, 6 and 8.

³⁹ III, 57 and 59; there was indeed no unanimity among Italian towns. For the ‘primores civitatis’ see III, 64. The consular legates in the Balkans at least evinced little zeal in the Flavian cause (11, 96; III, 4; 10 f.; 50), and provincial governors in the west did not declare for it until they had heard of the victory at Cremona (11, 97; 111, 35; 44; IV, 31); still, the honours that Vespasian was to bestow on Tampius Flavianus in Pannonia, Aponius Saturninus in Moesia, Pompeius Silvanus in Dalmatia, C. Calpetanus Rantius Quirinalis Valerius Festus in Africa and Vettius Bolanus in Britain shows that he did not regard any of them as his opponents; for their careers after 69 see Eck, W., Senatoren von Vespasian bis Hadrian (1970)Google Scholar; A. B. Bosworth, Athen. LI (1973), 49 f. Hordeonius Flaccus and his legionary legates on the Rhine were suspected from the first of Flavian sympathies (Hist. IV, 13; 19 etc.). The behaviour of senators in posts outside Italy is some guide to the sentiments of the order, hesitantly and unenthusiastically preferring Vespasian.

⁴⁰ On the drafting of senatus consulta after the senate had been dissolved see Mommsen, StR III, 1004 f. = DPR VII, 202 f. The interval is not recorded; the statement by O'Brien Moore (RE Suppl. VI, 801) that it was usual in the Republic to draft an SC during or immediately after the session is probable, but not warranted by the texts cited (Plut., Mar. 4; Cic., Cat. III, 13).

⁴¹ Strictly the people alone could make treaties in the Republic, but from the second century B.C. the senate arrogated the power; magistrates and promagistrates continued to require confirmation for such pacts as they made in the field (see Mommsen, StR III, 1158 f. = DPR VII, 378 f.). The lex Iulia de repetunda of 59 B.C. (Cic., Pis. 50) and the lex lulia maiestatis, enacted by Caesar (Allison, J. E. and Cloud, J. D., Latomus XXI (1962), 711 f.Google Scholar), repeating a provision of the Sullan law (Cic., loc. cit.), forbade them to make wars without sanction by senate and people (‘iniussu principis’ in Dig. XLVIII, 4, 3 represents a later development); hence the charge against Primus (Dio LIV, 3, 2). But Strabo XVII, 3, 25 says that Augustus πολέμου καὶ εἰρήνης κατέστη κύριος διἀ βίου, and Dio LIII, 17, 5 ascribes these rights to all emperors. Our document offers confirmation; ‘foedusue’ implies a supplement of the kind printed above. It is true that its historic statements could be ill-informed, but this is at least unlikely for a reign so recent as Claudius'. Hence, Dio's statement (LX, 23, 6) that in 44 the senate confirmed the pacts made with British peoples by Claudius and his legati (the latter would perhaps not be covered in any grant to the emperor himself) should not be taken to mean that they required such confirmation. Just as Claudius chose to obtain the senate's agreement to his adlection of Gauls into the senate, though he was entitled to admit them on his own authority, so he may have welcomed endorsement of arrangements in Britain which did not legally require their consent. There is other evidence for emperors consulting the senate on wars and treaties: they wanted public approval. See Mommsen, StR II, 954 f. = DPR v, 241 f.

⁴² Cf. Dio LIII, 32, 5; LIV, 3, 3 for extensions of Augustus' tribunician right to do business with the senate; see StR II, 896 f. = DPR v, 175 f. The precise technical meaning of the terms ‘per relationem discessionemque facere’ is controversial, but not relevant to this article, see StR III, 983. = DPR VII, 172 f.; Karlowa, , Röm. Rechtsgesch. 1, 498Google Scholar; Cantarelli, B. L., Bull. Comm. Arch. III (1890), 196 fGoogle Scholar.

⁴³ StR III 919 f. = DPR VII 98 f. assembles the evidence for restrictions on the senate meeting.

⁴⁴ See Levick and Astin, cited in n. 9.; Grenzheuser (n. 1), 73 f.

⁴⁵ Claudius vetoed abolitio memoriae, but Gaius' name, like that of Tiberius, was omitted from the list of emperors named in ‘oaths and prayers’ (Dio LX, 4, 5 f, cf. LIX, 9, 1); his acta were gradually rescinded (ibid. 4, 1 correcting Suet., Cl. 14). His name, however, remained in the official list of emperors who made grants of Roman citizenship, as did those of later rulers whose memory was condemned, Otho and Vitellius alone excepted; see JRS LXIII (1973), 86 for the Tabula Banasitana. It may be inferred that such grants remained valid, unlike those recorded by Tacitus, Hist. 1, 78, 1; III, 55, 2.

⁴⁶ Suet., Nero 49; Tac., Hist. IV, 40; cf. last note for Otho and Vitellius.

⁴⁷ Ann. XII, 23; Gell. XIII, 14. Augustus' silence in RG shows that he did not extend the pomerium, cf. Sen., , Brev. Vitae 13, 8Google Scholar, from which it probably follows that Claudius obtained special authorization, because he had not fulfilled the conventional precondition for an extension, ‘Italico agro adquisito’. See StR II, 1072 f. = DPR v, 376 f.

⁴⁸ However, the fact that Nero and his successors commended all holders of the consulship, at least for the year 69 (Hist. 1, 77, 2; 11, 71), shows only that they were carrying the practice further than Tiberius had done at first (Ann. I, 81), not that they acted in virtue of a legal right which he had lacked. Clause IV implies that the imperial candidates like others still needed the votes of the comitia. Such formalities survived in Trajan's time (Pliny, Paneg. 63, 1; 92, 3), and Dio's (LVIII, 20, 4).

⁴⁹ Lesuisse, L., Rev. Beige XL (1962), 51 fGoogle Scholar.

⁵⁰ e.g. Parsi, op. cit. (n. 1), 120.

⁵¹ e.g. J. Gagé, RÉA IV (1952), 290 f. I am not persuaded by his suggestion that some of Vespasian's coins attest his respect for Galba's memory. But he has anticipated the argument in this paragraph.

⁵² Tac., Hist. IV, 39; 40, 1.

⁵³ Mommsen, StR III, 924 = DPR Vii, 104 on Suet., Aug. 35 (cf. Dio LV, 3), to be corrected from the Calendar of Philocalus (CIL 1, p. 374).

⁵⁴ Tettius' journey to Vespasian was slow (Hist. II, 85, 2) and he may well not yet have reached the emperor, but ‘cognitus est ad Vespasianum con-fugisse’ does not imply that he had.

⁵⁵ They also voted ‘ut Pisonis quoque memoria celebraretur’; Tacitus' remark that this proved ‘inritum’ (IV, 40) shows that, whatever Vespasian's later attitude to Galba proved to be (n. 56), he did not annul the restoration of Galba's memory.

⁵⁶ Suet., Galba 23, cf. n. 55. Naturally Antonius Primus, legate of the legion Galba had raised, had acted on his own initiative in re-erecting Galba's statues in Italian towns (Hist. III, 7).

⁵⁷ Suet., Vesp. 9, 1. Cf. ‘divom Claudium’ in lex Salpensana XXV.

⁵⁸ Suet., Vesp. 8, 1 f., cf. Tac., Hist. II, 82, 2.

⁵⁹ JRS LXVI (1976), 15 f.; the editors note that Vespasian's coins of 69 also omit the tribunician. His first year of tr. pot. is attested in a diploma of March 70 (ILS 1989).

⁶⁰ Suet., Vesp. 12 ‘ac ne tribuniciam quidem potestatem … patris patriae appellationem nisi sero recepit’; in the lacuna left by most MSS, one inserts ‘nec’; some editors read ‘aut’, and Hirschfeld, probably rightly, inserted ‘statim nec’. There is not sufficiently precise evidence to show whether emperors from Gaius onwards had taken the same day as ‘dies imperii’ and ‘dies trib. pot.’, see M Hammond, op. cit. (n. 28), 23 ff.

⁶¹ Dig. XLVII, 21, 3, 1, cf. Dio LXVIII 2, 1 (who characteristically ignores the fact that there was a lex).

⁶² See contra Diosdi, E., Proc. XII Int. Congress Pap. (1970), 113 fGoogle Scholar.

⁶³ Jones, A. H. M., Later Roman Empire (1964) I, 322Google Scholar.

⁶⁴ Asconius 58 c f., cf. Mommsen, StR III, 1228 f. (= DPR VII, 456 f.); II, 883 f. (= DPR V 160 f.), esp. 888 (= DPR v, 165 f.), citing Dio LV, 2; 32; LIX, 15.

⁶⁵ Martial II, 91 f,; Pliny, Ep. 11, 13, 8; X, 94; Dig. 1, 3, 31. Martial III, 95 and IX, 97 suggests that Titus, perhaps Vespasian, had granted such dispensations.

⁶⁶ Inst. II, 17, 8; Dig. XXXII, 23; CJ VI, 23, 3. Neither these texts nor the more limited formulation of cl. VII suggest that the ‘leges’ concerned are only those affecting the Princeps in private law (so Arangio-Ruiz, , St. del Diritto Rom.⁷ (1968), 240 f.Google Scholar); it is indeed in this connection that emperors profess ‘legibus vivere’, whereas in criminal jurisdiction they certainly were unfettered by the laws.

⁶⁷ Dio LIII, 18, 1: λέλυνται γὰρ δὴ τῶν νόμων, ὡς αὐτὰ τα Λατίνα ῥήματα λέγει, and 28, 2 ( I have quoted the Loeb translation).

⁶⁸ Ascon. 59 c. The law provided that ‘praetores ex edictis suis perpetuis ius dicerent’. It does not seem to have applied expressly to other magistrates or promagistrates, but they were doubtless under a moral obligation to conform (e.g. Cic., Fam. XIII, 56, 3), which may have hardened into a rule under the Principate.

⁶⁹ Mommsen, Strafr. 865 f. (= Dr. pén. III, 194 f.); the prohibition is assumed, not expressly attested.

⁷⁰ P. de Francisci, BIDR XXXIV (1925), 321 f., has collected numerous texts of the fourth century and later, which state the imperial policy of abiding by the laws; as he says, such statements are quite compatible with their having the right (to be used in special circumstances) to disregard them. He also notes that in Trajan's time Dio Chrysostom had presented a model of monarchy as ἀνυπεύθυνος ἀρχή (II, 9 f,; 42 f,; LXII, 3). Justinian (Nov. CV, 4)actually explains why the emperor is set above the laws by the conception of the monarch as nomos empsychos. I doubt if this had much to do with the development of the principle ‘princeps legibus solutus est’ in Roman public law.

⁷¹ Augustus of course had in addition such iura as flowed from his imperium and tr. pot. as such, and these could be fortified by senatus consulta, which it would have been easy to mention in clause VII. The ius conferred in clause VI is wider still.

⁷² Most scholars think this word is interpolated in accordance with later usage (e.g. CJ I, 14, 5, 2 and 12, 1); Mommsen suggested that it might be genuine, reflecting the effect of Greek usage on a jurist from Berytus (StR II, 876, n. 2 = DPR v, 152, n. 2). For hypercritical examination of all the texts quoted, not accepted by most scholars, see Krüger, ZSS XLI (1920), 262 f.; Perozzi, , St. Bonfante (1930) I, 89 fGoogle Scholar. Perozzi inter alia objects to the use of the verb ‘constituere’ in the text of Gaius with reference to statutes and senatorial decrees, but perhaps it was deliberately inserted to assimilate them to imperial ‘constitutiones’.

⁷³ Perhaps Justinian claims that the senate had taken the place of the populus, in order to suggest that the emperor still in effect receives his power from the populus through the medium of a senatorial decree, which is as good as a lex.

⁷⁴ On constitutions see Jolowicz-Nicholas, , Hist. Introd. to the Study of Roman Law³ (1972), 365 fGoogle Scholar. The collection of constitutions down to 234 in Gualandi, G., Legislazione Imperials e Giurisprudenza 1 (1963)Google Scholar does not include those in CJ, for which see index to Krüger's edition, p. 489 f., nor those known from non-juristic sources, for which see de Francisci, P., Ann. Stor. Dir. XII–XIII (1968/1969), 1 fGoogle Scholar.; he seeks to explain the facts that from Hadrian (a) the volume of constitutions greatly increases and (b) they seem to have seldom taken the form of edicts. Constantine was to rule ‘contra ius rescripta non valeant, quocumque modo fuerint impetrata. Quod enim publica iura perscribunt, magis sequi iudices debent’ (CTh. 1, 2, 2); de Francisci, op. cit. (n. 70), explains this as referring to rescripts issued by his rivals for power. But might it be an abbreviated disclaimer of the general validity of rescripts which were only intended to confer privileges in particular cases, cf. CJ 1, 14, 2 (A.D. 420) and nn. 77 and 81?

⁷⁵ Imperial mandata are never classed expressly among the constitutiones, though they are cited by jurists at times as evidence of the law; see e.g. Dig. XXIX, 1, 1 pr. for the military will; however, in my view the section of Trajan's mandata quoted merely circulates to officials the rules made in another form, probably by edict. Mandata as such could hardly be regarded as ‘taking the place of a lex’, as they must have been mainly administrative, often referring to a single province, and were sometimes secret (Sen., Ep. 83, 14).

⁷⁶ Dig. 11, 14, 7. 7; III, 1, 1, 8; IV, 6, 1, 1; XLIII, 8, 2 pr. Edicts alone are mentioned in XXVIII, 7, 14.

⁷⁷ But CJ 1, 14, 12, 2 (where ‘legibus’ refers to jurists) shows that there had been doubts, perhaps over the generality of some constitutions; Justinian here does not distinguish those which were ‘personales’ from the rest.

⁷⁸ Fronto, ad M. Caes. i, 6 (Naber, p. 13 f.). Cf. Pliny, Ep. X, 112, 3; Dig. XXXVI, 1, 52 (Hadrian).

⁷⁹ e.g. Gaius I, 26; Ulpian, Dig. X, 2, 2 pr.; Paul, VI, 2, 12, 4 and XXII, 3, 5; Gordian, CJ X, 46, 1.

⁸⁰ e.g. Justinian, CJ I, 14, 12 pr.

⁸¹ Cf. Papin., Dig. 1, 3, 1 ‘lex est commune praeceptum’; Ulp., ibid. 8 ‘iura non in singulas personas sed generaliter constituuntur’.

⁸² e.g. FIRA ² 168, 11; 71.

⁸³ e.g. FIRA ² 168, 1, III and IV; Pliny, Ep. X, 65 f.; 79, 1.

⁸⁴ e.g. Dig. XXVI, 4, 1, 3 (Pius); in such cases jurists say that emperors ‘generaliter rescripserunt’, when they should ‘in omni loco valere’ (Ulpian, Dig. XLVII, 12, 3, 5).

⁸⁵ Thus a rescript of Pius to the koinon of Asia is taken to be of universal validity because it is not expressly limited to Asia, Dig. XXVII, 1, 6, 2. Similarly Trajan's ruling on the treatment of Christians, despite the initial reservation in Pliny, Ep. X, 97, 1, seems to have been applied everywhere in later reigns. Note the dictum of Javolenus under Trajan, Dig. 1, 4, 3: ‘beneficium imperatoris… quam plenissime interpretari debemus.’ Coll. III 3, 3 (cf. Gaius I, 52 f.) illustrates how jurists generalized from particular imperial decisions. Gualandi (n. 74) furnishes countless instances in all branches of the law. The validation of fideicommissa and of the ‘ius codicillorum’ under Augustus (Inst. II, 23, 1; 25 pr.) are early examples of the development of general rules out of particular cases.

⁸⁷ e.g. Gaius 11, 195 (Pius). I t was also constantly necessary for emperor s to repeat existing rules of the law ‘saepe rescriptum est’ is a juristic refrain.

⁸⁸ e.g. the decretum of Marcus making a new rule of law on the occasion of a particular case in Dig. IV, 2, 13 = XLVIII, 7, 7. For ‘novum ius’ made by senatus consulta and constitutions see e.g. Gaius, Dig. v, 3, 3. And note Julian, Dig. 1, 3, 11: ‘aut interpretatione aut constitutione optimi principis’.

⁸⁹ Orestano, Gli Editti Imperiali, extract from BIDR XLIV (1937), cf. n. 115.

⁹⁰ Dig. XXVIII, 2, 26; CJ VI, 33, 3; VII, 6, 1, 12; VIII, 10, 5; Inst. III, 7, 4. I would not cite here the cancellation of some of Gaius ' measures by Claudius (Dio LX, 4, 1), since we cannot be sure that these measures were not senatus consulta.

⁹¹ Orestano (n. 89) lists them, e.g. edicts of Augustus in Fr. de iure fisci 8; Dig. XLVIII, 18, 8 pr., both of universal application.

⁹² Other concessions to Junian Latins were made by senatus consulta or (under Tiberius) by the lex Visellia, see Gaius 1, 28 f,; Ulpian, Tit. III.

⁹³ For Domitian cf. Pliny, Ep. x, 60; 66; 72; Dig. XLVIII, 3, 2, 1; 16, 16. On abolitio memoriae and rescissio actorum see StR II, 1129–33 = DPR V, 441 f. They would not affect senatus consulta passed ‘auctore Caesare’. The condemnation of Domitian's memory is implicit in Dio LXVIII, I, and indeed in Nerva's letter ap. Pliny, Ep. X, 58, 10 ‘cum rerum omnium ordinatio, quae prioribus temporibus incohatae consummatae sunt, observanda sit, tum epistulis etiam Domitiani standum est’.

⁹⁴ Dig. XLVIII, 10, 15 pr. Cf. for instance 8, 1, 3–5; 8, 4, 2; 8, 5; 8, 11; 8, 14 for extensions of the law on murder; others were made by SC e.g. 8, 3, 2 f.; 8, 6; 8, 11, 2; 8, 13. Cf. n. 41.

⁹⁵ Dig. 1, 2, 2, 49. What this meant at first is far from clear, see de Martino, 492 for bibliography.

⁹⁶ Naturally imperial constitutions were normally based on juristic advice; for a clear instance see Dig. XXXVII, 14, 17.

⁹⁷ Dig. XVI, 1, 2, 1; date Medicus, D., Zur. Gesch. des SC Vell. (1957) 13 fGoogle Scholar.

⁹⁸ The SC Calvisianum, which in effect amended the lex Iulia de repetundis and is a very early instance of senatorial ‘legislation’ (4 B.C.), was promoted by Augustus (FIRA ² 1, 68, v). For imperial sanction Tac., Ann. III, 52–5; XV, 20–2 are significant.

⁹⁹ Ascon. 58 C f. For other quasi-legislative activities of the post-Sullan senate see StR III, 1228 f. = DPR VII, 458 f. Watson, A., Law Making in the Later Roman Republic (1974), ch. 2Google Scholar is clearly right that senatus consulta did not possess legal force as such, but they could be just as effective, if the magistrates were disposed to obey and enforce them, and Cicero held this to be their duty (Sest. 139). Cf. Cicero's ideal set of laws in Leg. III, 6; ‘(magistrates) quodcumque senatus crevit, agunto’, and 10 ‘(senatus) decreta rata sunto’.

¹⁰⁰ e.g. ‘placet’ in FIRA ² 1, 67, cf. 68, I, III and IV, but in III Augustus also says κελέυω, cf. the language of Claudius, ibid. 71 and Vespasian, ibid. 73.

¹⁰¹ StR 1, 22 = DPR I 24. I do not, however, agree with Mommsen that where ‘imperium’ is used of the populus, it either has a geographical sense or is ‘political speculation’; it is simply ‘dominion’ or ‘sovereignty’ over subject peoples (Oxf. Latin Dict. s.v., 5), though the usage is not indeed ‘technical’ as when applied to a magistrate.

¹⁰² e.g. Arangio-Ruiz (n. 66). For ‘acta’ cf. StR II, 906 = DPR v 186; Cic., Dom. 40 illustrates the equation of a magistrate's acta with ‘quae egisset’. The ‘acta’ of Bassus in Bithynia certainly included judicial decisions (Plin. Ep. X, 56, 4). Hence in cl. VIII of our document ‘acta gesta decreta imperata’ is unnecessarily full, cf. the pleonasms in cl. II. ‘Facere’: cf. Ann. IV, 37.

¹⁰³ So de Martino, 502 and others he cites.

¹⁰⁴ Cic., Leg. III, 8; Phil. XI, 27; Sail., Cat. 29 etc.

¹⁰⁵ One might rather think of senatus consulta which had invited a magistrate to take such and such action ‘si ei e republica fideque sua videretur’ (e.g. FIRA ² 1 32).

¹⁰⁶ The phrasing of the clause is odd. Strictly ‘ex usu’ relates only to ‘reipublicae’ and ‘maiestate’ to all that follows. But ‘maiestate’, while more appropriate than ‘usu’ to things divine, and well suited to things public, is nonsense for things private; ‘ex usu’ was surely still in the minds of the draftsmen. See Heumann-Seckel, Handlexikon zu den Quellen des röm. Rechts ⁹, s.v. ‘utilis’, ‘utilitas’, for a common motiv in explaining the origin of legal rules, esp. innovations, e.g. Ulp., Dig. 1, 4, 2: ‘in rebus novis constituendis evidens esse utilitas debet, ut recedatur ab eo iure, quod diu aequum visum est’. The ‘novum ius’ that emperors made could be so justified.

¹⁰⁷ RG 5 f. For Augustus' ‘Republicanism’ (which comes out in his own designation of his position as ‘princeps’ and reference to other notables as ‘principes’, RG 12, 1) see Velleius 11, 89, 3 f.

¹⁰⁸ Contra Herzog, , Gesch. u. System der röm. Verfassung II, 151Google Scholar, nothing in Dio LIV, 10 (19 B.C.) can be relevant; consular power did not give the holder such discretion as cl. VI, and Dio's account of the cura morum is wrong.

¹⁰⁹ Hist. 1, 1; Ann. 1, 1, 1; 2, 2; 3, 1; 4, 1 etc.

¹¹⁰ e.g. Benef. VI, 32, cf. II, 20, where he argues that liberty and the Republic were irretrievably lost by 44 B.C.

¹¹¹ Ann. 1, 9, 4: ‘non aliud discordantis patriae remedium fuisse quam ut ab uno regeretur’. Ovid's ‘res est publica Caesar’ (Tr. IV, 4, 15) shows that contemporaries could have been so clearsighted.

¹¹² Ann. XI, 5, 1 (cf. for Aug. 1, 2, 1); XIII, 4.

¹¹³ Suet., Vesp. 7, 2; Tac., Hist. IV, 81. The Flavian quasi-monopoly of the ordinary consulship, and the absurd number of their imperatorial acclamations, no doubt reflect Vespasian's desire to compensate for his ‘novitas’.

¹¹⁴ Dio XLVII, 18, 3; LVII, 8, 4; LIX, 9,1; LX, 10, 1.

¹¹⁵ For magisterial edicts see StR I, 634 f. = DPR II 306 f. Orestano, op. cit. (n. 89), was right that this limitation came not to apply to imperial edicts (nor constitutions in general), but the explanation is surely not that they were not magisterial in principle (as he thinks) but that given above. Orestano maintains that magisterial edicts only announced rules by which the magistrate would be guided in exercising his own powers, whereas emperors prescribed rules for others to follow. But rules of the first kind indirectly determined the proper conduct of the citizens, and not all magisterial edicts consistently conformed to Orestano's model. Cf. the aedilician edict, esp. 5 f. (FIRA ² 1, p. 390 f.), and occasional formulae in the praetorian edict like ‘ne quid in loco publico vel itinere fiat’ (ibid. 377); also Cic., Quinct. 84 with his paraphrase, 89. See also for instance Cic., Verr. II 3. 36; Qu. fr. 1, 1, 26; Fam. III, 8, 3 f,; Livy XXXIX, 14, 7 f,; XLI, 9, 9–12; XLIII, 14, 5. f,; FIRA ² 1, no. 52–4.

¹¹⁶ Ann. IV, 37. The substantial authenticity of this speech is guaranteed by its incompatibility with Tacitus' comments (38, 5). Cf. generally Syme Tacitus (1958), 700 f.

¹¹⁷ For custom making law see Watson, op. cit. (n. 99), ch. 13; Jolowicz-Nicholas, op. cit. (n. 74), 353 f. upholding Dig. 1, 3, 31 as genuine. (It is surely wrong to say that ‘the Romans do not invoke the idea of custom’ in constitutional law, see e.g. Cic., Sest. 137; Rep. III, 41. Dio LIII, 18, 4 rightly based the position of the Princeps on custom. Like Great Britain, Rome never had a written constitution, and any distinction between ‘constitutional’ and ‘customary’ is unsound.)

¹¹⁸ Justinian says: ‘statum rei publicae sustentamus’ (Deo Auct. 1).

¹¹⁹ Dig. 1, 3, 31 (n. 117).